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FAQs for instructors

From our frequently asked questions file …

This is the first tranche of questions, with more to be added in the future.

Policy development and approval of legislation

1.1 How can PCO help during the policy development stage?

PCO drafting team managers are happy to be consulted during the course of policy development for a Bill or Legislative Instrument project—you do not need Cabinet approval to consult us generally during the policy development stage.

We can:

  • help you to identify the legislative options that exist to deal with your policy issue
  • provide advice in relation to legislative process as you put together a project timeline
  • review your draft policy paper to ensure the recommendations, if agreed to, will put us all in a good position to prepare a Bill or Legislative Instrument that will meet your needs (see Q1.3).

The Legislation Design and Advisory Committee (LDAC) can also be consulted on legislative proposals for Bills during the policy development stage. If you are taking a proposal to the LDAC it is best practice to keep the PCO informed, so that the assigned counsel or a drafting team manager can also be involved in the discussions.

1.2 What policy approval is needed for you to instruct PCO?

For Bills

In the ordinary course, your Bill will have been given a place on the legislation programme at the start of the year. Then a Cabinet committee or Cabinet will have approved a policy paper that includes a recommendation authorising your Minister to issue drafting instructions to the PCO. The standard rule is that Cabinet approval of the policy must be obtained before the PCO starts work drafting your Bill (see Cabinet Manual 7.52 and 7.53).

Of course, some exceptions do exist:

  • If the need for your Bill is unexpected, it may not be on the legislation programme, in which case your policy paper should seek a priority for the Bill as well as authority to instruct the PCO.
  • If your Bill is aiming for an immoveable deadline, and the work involved in taking the policy paper through Cabinet could create real timeline problems, there is a process by which your Minister can write to the Attorney-General to seek authority for the PCO to start drafting before the detailed policy is approved (see Q1.5).
  • Then there are cases of emergency. Please talk to your drafting team manager early if you think this situation applies, and we can work with you as to the right process to follow.
For Legislative Instruments

In general, the policy underlying a proposed Legislative Instrument must be approved by a Cabinet committee and Cabinet before the instrument is drafted. However, if the Legislative Instrument is entirely routine and does not require new policy decisions, the Minister may authorise drafting. 

For routine instruments, whether you need to obtain the Minister’s approval before the PCO starts work on drafting the instrument also depends on the nature of the instrument. In most cases, we will require a copy of the Minister’s approval in the form of a signed briefing note. However, in some cases the need for the instrument is clear from the principal Act (for example, requirements to make annual adjustments payments in line with CPI increases). In these cases, we will be happy to draft an instrument on your instructions without requiring you to first obtain a signed briefing note from your Minister, because the Minister’s approval can be inferred from the requirement in the Act.

1.3 What level of detail should be included in a request for policy approval?

Your paper seeking policy approval needs to be pitched to give the Minister and other members of Cabinet sufficient information to be able to understand and authorise the policy proposal, and to ensure you are in a position to provide instructions to the PCO that are clearly within the scope of that approval. However, it should not be pitched at a level that is so detailed that there is no flexibility to adjust matters of detail (as opposed to matters of high policy) during the drafting process.

For example, aim to describe the policy outcome you are seeking rather than structuring recommendations in a way that recommends approval of specific wording or a specific drafting approach. It is a balancing exercise between giving Ministers enough information to enable them to approve the policy, and not specifying so much detail that it limits development of the most appropriate legislative solution during the drafting phase.

For a Bill or significant Legislative Instrument, it is a good idea for your policy paper to seek authority for the Minister, or a group of Ministers, to approve matters of detail consistent with the policy that arise during the course of drafting.

Drafting team managers are happy to review your draft Cabinet papers to provide assistance in this area.

1.4 Who should be consulted on the policy?

Other departments that have an interest in, or may be affected by, proposed legislation should be consulted as policy is developed and before drafting instructions are prepared. Relevant agencies in the wider state sector should also be consulted as appropriate (see Cabinet Manual 7.33).

When you provide instructions to us, we may ask you to let us know which departments have been consulted and may suggest other departments to involve. We may also ask you about the feedback received from other departments when you did consult, to assist us to fully understand the issues as we draft.

1.5 When can PCO start drafting before policy approval is obtained?

The general rule is that Cabinet approval is required before the PCO starts to draft. However, if you are facing a challenging project timeline there is a process by which your Minister can write to the Attorney-General to seek permission for the PCO to start work ahead of policy approval. Relevant factors may include the urgency of the matter, an immoveable deadline, the level of Ministerial sign-off, the length and complexity of the drafting needed, and how likely or unlikely it is that the policy might shift at Cabinet.

Your drafting team manager can advise whether and how to seek the Attorney-General’s permission for advance drafting. (And of course, in cases of exceptional urgency, feel free to talk to us so we can determine how best to work with you to progress your project.)

See also Q1.2.

1.6 What happens if new policy ideas arise in the course of drafting?

The answer to this depends on the relative importance of the new idea in the scheme of the Bill or Legislative Instrument. For a Bill or significant Legislative Instrument it is a good idea for your policy paper to seek authority for the Minister, or a group of Ministers, to approve matters of detail that arise during the course of drafting. If you have an authority along these lines and if the new matter is one of detail, then you should prepare a briefing note to the Minister (or group of Ministers) seeking approval. We will be happy to draft in accordance with your instructions if this approval is given.

Even if there is no prior approval for the Minister to authorise matters of detailed policy, if the new matter is relatively minor in the scheme of things, we are likely to draft in accordance with your instructions on the basis that the new matter is within the existing broad policy approval, or on the basis that it will in due course be addressed in the LEG paper seeking approval for the Bill to be introduced or Legislative Instrument to be made.

If you wish to include something in the legislation that directly contradicts the existing policy approval, again it is a question of the relative significance and importance of the matter. If it is a very insignificant matter of detail, the PCO might draft in accordance with your instructions despite the contradiction with the policy approval. However, in that case we would require your assurance that the departure from the earlier approval will be specifically covered by a recommendation in the LEG paper and we would want to review the LEG paper to ensure the matter is addressed.

In the case of substantive new policy matters or any proposed significant reversal of a decision in the existing policy approval, you will need to take a new paper to the appropriate Cabinet policy committee and obtain a new policy approval.

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